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ABN Ambro Services Co., Inc. v. Naperville Park District

September 18, 2001

ABN AMBRO SERVICES CO., INC., ET AL., OBJECTORS-APPELLEES
v.
NAPERVILLE PARK DISTRICT, INTERVENOR-APPELLANT



Appeal from the Circuit Court of Du Page County. No. 98-TX-10004 Honorable Robert E. Byrne, Judge, Presiding

The opinion of the court was delivered by: Justice Grometer

UNPUBLISHED

This matter comes before the court as an interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). We are presented with the following certified question:

"Must [a] petitioner for intervention allege that representation by the State's Attorney is inadequate in a tax rate objection case under Section 23-10 of the Property Tax Code in order to be considered for intervention as of right under Section 2-408(a)(3) of the Code of Civil Procedure?"

We answer the question in the negative.

The relevant facts are as follows. A group of taxpayers, including ABN Ambro Services Co., Inc. (objectors), filed objections in the circuit court of Du Page County. Objectors alleged that the 1997 tax levy adopted by the Naperville Park District (Park District) failed to comply with the notice provisions of the Truth in Taxation Law (35 ILCS 200/18--55 et seq. (West 1998)). The Property Tax Code (Tax Code) (35 ILCS 200/1--1 et seq. (West 1998)) grants the State's Attorney the authority to compromise and settle tax objections with property owners. See 35 ILCS 200/23--30 (West 1998); In re Application of the County Collector for Delinquent Taxes, for at Least Five Years Prior to 1987, 155 Ill. 2d 520, 527 (1993).

On August 13, 1999, before any tax objections were settled, the Park District filed a petition for leave to intervene, claiming that it was entitled to intervene as a matter of right under section 2-408(a)(3) of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-408(a)(3) (West 1998)) because it was "so situated as to be adversely affected by the distribution or other disposition of the property subject to the control or disposition of the court." The Park District complained that, if the tax objections were upheld or settled, approximately $150,000 would be withheld from its future tax distributions.

In their answer to the Park District's petition, objectors responded, inter alia, that the Park District had no right to intervene. Objectors claimed that the only basis for intervention under Illinois law is that of inadequate representation by the State's Attorney (see 735 ILCS 5/3--408(a)(2) (West 1998); Channahon Park District v. Bosworth, 145 Ill. App. 3d 820, 825 (1986)) and that the Park District did not present any evidence that the State's Attorney's representation was inadequate.

On November 10, 1999, the trial court denied without prejudice the Park District's petition to intervene. In response, the Park District filed a motion entitled "Motion to Reconsider, or, in the Alternative, Motion for Rule 308(a) or 304(a) Finding." Following a hearing on February 16, 2000, the trial court denied the Park District's motion. However, it certified the following question for review pursuant to Rule 308(a) (155 Ill. 2d R. 308(a)):

"Must the petitioner for intervention allege that representation by the State's Attorney is inadequate in a tax rate objection case under Section 23-10 of the Property Tax Code in order to be considered for intervention as of right under Section 2-408(a)(3) of the Code of Civil Procedure?"

This court denied permissive interlocutory appeal. The Park District then filed a petition for leave to appeal with our supreme court. The supreme court issued a supervisory order vacating this court's denial of an interlocutory appeal and directing this court to allow the application for interlocutory appeal and to consider the merits of the appeal. ABN Ambro Services Co. v. Naperville Park District, 191 Ill. 2d 525 (2000).

Before we resolve the question certified by the trial court, we address some matters raised by objectors as to why we should not answer the question. At the outset, objectors claim that addressing the question certified in this case requires this court to render an advisory opinion. According to objectors, the Park District cannot prove that it has property which is "in the custody or subject to the control or disposition of the court or a court officer" as required by section 2--408(a)(3) of the Civil Code (735 ILCS 5/2--408(a)(3) (West 1998)). Since the Park District cannot meet the basic requirements for intervention under section 2--408(a)(3), objectors reason that a ruling on the certified question would be advisory. We disagree. The certified question we are asked to answer is whether a party wishing to intervene under section 2--408(a)(3) of the Civil Code is also required to allege that the State's Attorney's representation was inadequate. The issue whether the Park District has met the basic requirements necessary to intervene under section 2--408(a)(3) is a wholly separate matter that is not before us today. The trial court recognized as much when, at the hearing on the Park District's motion to reconsider, it noted that it was not yet deciding whether the Park District had any property subject to the control or disposition of the court.

Objectors also contend that the intervention provision of section 2--408(a) of the Civil Code does not apply to tax objection cases. We disagree. To the extent that the Tax Code does not regulate matters of procedure, the Civil Code applies. See People ex rel. Southfield Apartment Co. v. Jarecki, 408 Ill. 266, 274 (1951)("where the Revenue Act [the statute that formerly contained the relevant provisions of the Tax Code] is silent, * * * the Civil Practice Act and rules of court apply"); In re Application of the Cook County Collector for Judgment & Order of Sale Against Lands & Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1987 & Prior Years, 271 Ill. App. 3d 12, 16 (1995) ("To the extent that the Revenue Act does not regulate matters of procedure, the Code of Civil Procedure applies"); In re Application of Rosewell, 236 Ill. App. 3d 165, 168-69 (1992). Indeed, section 2-108(b) of the Civil Code provides:

"(b) In proceedings in which the procedure is regulated by statutes other than those contained in the Act, such other statutes control to the extent to which they regulate procedure but Article II of this Act applies to matters of procedure not ...


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